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Ferguson v. United of Omaha Life Ins. Co.

United States District Court, D. Maryland

March 11, 2014


Page 475

For Terry Ferguson, on behalf of The Estate of John Ferguson, Plaintiff: Scott Bertram Elkind, LEAD ATTORNEY, Elkind and Shea, Silver Spring, MD.

For United of Omaha Life Insurance Company, doing business as Mutual of Omaha, The ProObject, Inc. Group Life and Accidental Death and Dismemberment Benefit Plan, Defendants: John Snowden Stanley, Jr, Semmes Bowen and Semmes PC, Baltimore, MD.


Page 476


William M. Nickerson, Senior United States District Judge.

This action is brought under the provisions of the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq. Plaintiff Terry Ferguson, on behalf of the estate of his late brother, Plaintiff John Ferguson,[1] seeks to recover accidental death insurance benefits under a group policy issued by Defendant United of Omaha Life Insurance Company (United of Omaha). Ferguson was pulled, unconscious, from a public swimming pool on September 15, 2010, and died at a local

Page 477

hospital on October 1, 2010, having never regained consciousness. United of Omaha denied Plaintiff's claim for accidental death benefits after concluding that Ferguson had experienced an epileptic seizure while swimming, which contributed to his death. In United of Omaha's view, Ferguson's death was not " independent of Sickness and all other causes" and thus, not covered under the policy.

Before the Court are cross motions for summary judgment, ECF No. 22 (Defendants')[2] and ECF No. 23 (Plaintiff's). The motions are ripe for review. Upon review of the briefing, the administrative record, and the applicable case law, the Court determines that no hearing is necessary, Local Rule 105.6, and that Plaintiff's motion will be granted and Defendants' denied in part and granted in part.


At the time of his death, Ferguson was 39 years old and a frequent participant in marathons and triathlons. To train for these events, he swam regularly at the North Arundel Aquatic Center in Glen Burnie, Maryland. He had also been diagnosed with epilepsy several years prior and was receiving regular treatment for his epilepsy from his neurologist, Francis J. Mwaisela, M.D.

In February of 2010, Ferguson experienced a seizure while swimming that led to his near-drowning and a three-day hospitalization. On March 9, 2010, Ferguson had a follow up visit with Mwaisela and Mwaisela increased the dosage of his seizure medication. Ferguson inquired during that visit as to whether he could continue to swim and Mwaisela told him he had " no problems in him doing so providing one of his colleagues will keep eye contact with him throughout the entire time he is in the water." AR 000220.[3] At a subsequent follow-up visit on July 26, 2010, Ferguson reported that he had no seizure-like episodes since the increased dosage of his medication. AR 000215.

On the evening of September 15, 2010, at least one life guard was on duty poolside at the North Arundel Aquatic Center and at least one other individual, Marc Womeldorf, was swimming in the pool at the same time as Ferguson. In a statement given on May 5, 2011, Womeldorf states that he observed Ferguson " porpoising," i.e., " letting himself drift to the bottom into a crouch position, stay there maybe a minimum of several seconds in a stopped position and then push off towards the surface." AR 000341. Womeldorf stated that he believed this was a training technique used to increase an athlete's tolerance for lack of oxygen. At one point, Womeldorf noticed Ferguson in a " 'prone on elbows position' with his hands clasped near or under his chin and stable, not moving." Id. While Womeldorf could not remember precisely how long Ferguson was in this position before he grew concerned and swam toward him, he stated it was between 25 and 70 seconds. Womeldorf swam to Ferguson, pulled him to the surface, " gave him at least 2 rapid breaths clearing his mouth out in between after which he threw up twice, passive, involuntary. He was not conscious." AR 000342.

With the assistance of a life guard, Ferguson was pulled from the pool and Womeldorf and a life guard started two person

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CPR. An Anne Arundel County Fire Department Medic unit responded to the scene and continued CPR until he was transported by ambulance to the Baltimore Washington Medical Center (BWMC). An Anne Arundel County police officer who also responded to the scene stated in his Incident Report that he was advised that Ferguson was under water for approximately two minutes before he was pulled out of the water. The officer also states in his report that " [e]mployees of the aquatic center advised that Ferguson swims frequently and tells the staff that he suffers from epilepsy." AR 000085. When the officer arrived at BWMC, the charge nurse told him that Ferguson had been admitted in February 2010 after having a seizure at the aquatic center. The officer concludes his report by opining that " [i]t is believed that Ferguson had a seizure while swimming in the pool." Id.

Ferguson was intubated in the intensive care unit at BWMC where he was treated for about two and a half weeks but never regained consciousness. While at BWMC, he was examined by numerous physicians who consistently included in their notes the conclusion that Ferguson had a seizure that led to his drowning. See, e.g., AR 000087 (Discharge Summary of Dr. Ratnakar Mukherjee - " In summary, the patient was in a pool when he had a seizure episode. He subsequently went into respiratory distress . . . ." ); AR 000105 (Consultation Note of Dr. Poorima Sharma -- " This is a 38-year-old gentlemen with a history of seizure disorder on Tegretol [4] who, while swimming, developed a seizure episode leading to aspiration and drowning." ); AR 000125 (Consultation Note of Dr. Sangjin Oh -- Ferguson " presented to the hospital after a drowning episode secondary to seizure and then going into cardiac arrest." ). As his condition continued to worsen, Ferguson's family decided that it was better to " terminally wean[] him off of the ventilator and [he] passed away with dignity." AR 000087.

At the time of his death, Ferguson was covered under a Group Term Life and AD& D (Accidental Death and Dismemberment) Policy, Policy No. GLUC-AE2C (the Policy), issued by United of Omaha to his employer, ProObject, Inc. In addition to a basic life insurance benefit, the Policy provided an " AD& D Benefit" [5] that, according to the Summary of Coverage, " is paid if an employee is injured as a result of an Accident, and that Injury is independent of Sickness and all other causes." AR 000017. The Policy Certificate (which constitutes the Summary Plan Description, see AR 000048), contains the following definitions.

Accident means a sudden, unexpected, unforeseeable and unintended event, independent of Sickness and all other causes.
Accident does not include Sickness, disease, bodily or mental infirmity or medical or surgical treatment thereof, bacterial or viral infection, regardless of how contracted. Accident does not include bacterial infection that is the natural result of an accidental external bodily injury or accidental food poisoning.

AR 000038 (emphasis in original).

Injury means an accidental bodily injury which requires treatment by a Physician.

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It must result in loss independently of Sickness and other causes.

AR 000051 (emphasis in original).

Sickness means a disease, disorder or condition, which requires treatment by a Physician.

Id. (emphasis in original).

The " Exclusion" provision of the Certificate contains the following exclusion: " We will not pay for any loss which . . . (g) does not result from an Accident." AR 000040. The " A& D Exclusions" page of the Summary of Coverage repeats that same exclusion. AR 000018 (" We will not pay for any loss which . . . does not result from an Accident." ).

The beneficiaries under the Policy are Plaintiff and Ferguson's sister, Holly McGrath, and on or about October 19, 2010, Plaintiff and Ms. McGrath submitted a claim under the Policy. On November 24, 2010, United of Omaha approved the payment of $179,000 in Basic Life under the Policy. In a letter dated January 11, 2011, however, United of Omaha advised Plaintiff and Ms. McGrath that their claim for Accidental Death benefits was denied. AR 000079. After quoting the definition of " Accident" set out above, the letter stated, " According to the information received from the Anne Arundel County Police Department and the Baltimore Washington Medical Center, John's death was not independent of sickness and all other causes. Therefore, we are unable to allow accidental death benefits." Id.

Following that initial denial, counsel for Plaintiff sent several letters to United of Omaha challenging that decision and submitting various materials. In a July 18, 2011, letter, he summarized and submitted various medical articles about risk of death and injury for epileptics and also discussed various court decisions mandating the payment of accidental death benefits under facts similar to those presented here. AR 000411 -- 000415. An August 5, 2011, letter forwarded additional medical articles about seizure disorders and inaccuracies in death certificates and determinations of causes of death, and also contained additional legal argument challenging the denial of accidental death benefits. AR 000376 -- 388. In a September 19, 2011, letter, Plaintiff's counsel cited additional legal authority for his position. AR 000210 -- 000211.

By letter dated November 11, 2011, United of Omaha informed Plaintiff's counsel that it had completed its review of the appeal and had determined that its previous decision was appropriate. AR 000200 -- AR 000202. The letter stated that the following materials were reviewed:

Statement of PolicyHolder or Group Administrator
Statements of Beneficiary or Other Claimant
Police Report dated September 15, 2010
Certificate of Death filed October 5, 2010
Medical records from [BWMC] dated September 12, 2010 through October 1, 2010
Medical records from Dr. Mwaisela dated March 9, 2010 through July 26, 2010
Letters from [Plaintiff's counsel] dated July 18, 2011, August 5, 2011 and September 19, 2011 and the information provided with those letters, ...

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